Jacqueline Dejournett v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 31, 2019
• Docket: 19A-CR-63
• Status: Published

Opinion

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 31 2019, 5:41 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Curtis T. Hill, Jr. Daniel Hageman Attorney General of Indiana Marion County Public Defender Agency Sierra A. Murray – Appellate Division Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jacqueline Dejournett, October 31, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-63 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Amy M. Jones, Appellee-Plaintiff. Judge Trial Court Cause No. 49G08-1803-CM-7238

Mathias, Judge.

[1] Jacqueline Dejournett (“Dejournett”) was convicted in Marion Superior Court

of Class A misdemeanor operating a vehicle with an alcohol concentration

Court of Appeals of Indiana | Memorandum Decision 19A-CR-63 | October 31, 2019 Page 1 of 5 equivalent to 0.15 or more. She was ordered to serve 365 days in the county jail

with 357 days suspended to probation and pay $340.00 in probation fees.

Dejournett appeals and argues that the trial court abused its discretion when it

ordered her to pay probation fees without conducting an indigency hearing.

[2] We affirm.

Facts and Procedural History [3] On February 20, 2018, at approximately 7:00 p.m., Indianapolis Metropolitan

Police Department Officer Cooper Dinges (“Officer Dinges”) responded to a

report of an intoxicated driver near the intersection of English and Southeastern

Avenues. In a parking lot near that intersection, the officer observed a black

vehicle without a license plate circling the lot. Officer Dinges activated his

emergency lights, shined his spotlight on the vehicle, and it came to a stop.

[4] Dejournett was the driver and sole occupant of the vehicle. Officer Dinges

smelled alcohol and saw numerous beer cans inside the vehicle. He also noted

that Dejournett’s speech was slurred.

[5] Officer Adam Jones (“Officer Jones”) arrived on the scene shortly thereafter to

conduct sobriety tests on Dejournett. Officer Jones observed the smell of

alcohol, Dejournett’s bloodshot eyes, and slurred speech. He then administered

a horizontal gaze nystagmus field sobriety test during which Dejournett

displayed all six signs of intoxication. After Dejournett refused a chemical test,

Officer Jones obtained a search warrant, and Dejournett was transported to

Eskenazi Hospital for a blood draw. The results indicated that her whole blood Court of Appeals of Indiana | Memorandum Decision 19A-CR-63 | October 31, 2019 Page 2 of 5 ethyl alcohol concentration was in the range of .198 to .237% gram of alcohol

per 100 milliliters of her blood.

[6] On December 12, 2018, Dejournett was convicted in a bench trial of Class A

misdemeanor operating a vehicle with an alcohol concentration equivalent to

.15 or more. During the sentencing hearing, Dejournett informed the court that

she relied on her fiancé for financial support and had filed a disability claim.

The trial court ordered Dejournett to serve 365 days at the county jail with 357

days suspended to probation.

[7] The trial court further ordered Dejournett to undergo a substance abuse

evaluation and treatment with random drug and alcohol testing. The court

imposed a $200.00 countermeasure fee, a $400.00 alcohol drug services fee, and

a $340.00 fee for the costs of probation and drug and alcohol tests. The trial

court found Dejournett indigent for the purposes of court costs.

[8] Dejournett now appeals.1

1 As the apparent result of a probation violation, on April 4, 2019, Dejournett and the State entered into an agreement, which was approved by the trial court, modifying her sentence to be served in the Behavioral Health Alternative Court program. Appellant’s App. p. 7. Dejournett agreed to serve a minimum of twelve months in the program and to abide by its rules and conditions. Id. at 91–95. The trial court lacked jurisdiction to approve the agreement as our court obtained jurisdiction over this case on January 17, 2019. Therefore, the agreement is arguably void. However, neither party has addressed the enforceability of the agreement in this appeal, and the placement modification does not change the outcome here.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-63 | October 31, 2019 Page 3 of 5 Discussion and Decision

[9] Dejournett argues that the trial court abused its discretion when it ordered her

to pay the “maximum amount of probation fees” but failed to conduct an

indigency hearing. Appellant’s Br. at 7. “‘Sentencing decisions include

decisions to impose fees and costs,’ and a trial court’s sentencing decision is

reviewed for abuse of discretion.” De La Cruz v. State, 80 N.E.3d 210, 213 (Ind.

Ct. App. 2017) (quoting Coleman v. State, 61 N.E.3d 390, 392 (Ind. Ct. App.

2016)). An abuse of discretion occurs when the sentencing decision is clearly

against the logic and effect of the facts and circumstances before the court. Id.

[10] A trial court may order a person convicted of a misdemeanor to pay costs. See

Ind. Code § 35-38-2-1. If a trial court imposes costs or fines as a condition of

probation, the court is statutorily required to conduct an indigency hearing. See

Ind. Code § 33-37-2-3(a) (costs); Ind. Code § 35-38-1-18(a) (fines). Although the

hearing must be conducted after a judgment of conviction, see id., the relevant

statutes do not otherwise dictate when the hearing is to be held, see Berry v. State,

950 N.E.2d 798, 802 (Ind. Ct. App. 2011). Accordingly, unless the State files a

petition to revoke a defendant’s probation for nonpayment of fines, costs, or

fees, the trial court is free to postpone the hearing until the completion of the

defendant’s sentence. See Johnson v. State, 27 N.E.3d 793, 795 & n.1 (Ind. Ct.

App. 2015) (“A trial court acts within its authority when it chooses to wait and

see if a defendant can pay probation fees before it finds the defendant

indigent.”).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-63 | October 31, 2019 Page 4 of 5 [11] Moreover, “[a] defendant’s indigency does not shield [her] from all costs or fees

related to [her] conviction.” Banks v. State, 847 N.E.2d 1050, 1051 (Ind. Ct.

App. 2006), trans. denied. An indigency determination merely prevents the

defendant from being imprisoned for her inability to pay. Henderson v. State, 44

N.E.3d 811, 815 (Ind. Ct. App. 2015) (emphasizing that “the trial court may in

its discretion fine [the defendant] whether or not he is found to be indigent”); see

also Berry, 950 N.E.2d at 803 n.6 (noting the imposition of costs is an issue

separate from the sanctions imposed for nonpayment).

[12] For these reasons, we conclude that Dejournett is mistaken.

Notwithstanding the indigency hearing requirement contained in Indiana Code sections 33-37-2-3(a) and 35-38-1-18(a), a trial court has the authority to assess fines, costs, and fees against an indigent defendant; “indeed, a different result would amount to inverse discrimination since it would enable an indigent to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other[.]”

Meunier-Short v. State, 52 N.E.3d 927, 931 (Ind. Ct. App. 2016) (quoting

Williams v. Illinois, 399 U.S. 235, 244 (1970)).

[13] Affirmed.

May, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-63 | October 31, 2019 Page 5 of 5